UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1447

ERWIN TOBAR-BARRERA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General, 

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: September 17, 2013 Decided: October 29, 2013

Before GREGORY, DAVIS, and KEENAN, Circuit Judges.

Petition granted in part and denied in part by unpublished 

opinion. Judge Davis wrote the opinion, in which Judge Gregory

joined. Judge Keenan wrote a dissenting opinion.

ARGUED: Timothy William Davis, LAW OFFICE OF TIMOTHY W. DAVIS, 

LLC, Baltimore, Maryland, for Petitioner. Jonathan Aaron 

Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., 

for Respondent. ON BRIEF: Stuart F. Delery, Acting Assistant 

Attorney General, William C. Peachey, Assistant Director, 

Matthew Allan Spurlock, Office of Immigration Litigation, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

DAVIS, Circuit Judge:

Petitioner Erwin Tobar-Barrera (“Tobar-Barrera”), a native 

and citizen of Guatemala, seeks review of the Board of 

Immigration Appeals’ (“Board”) order dismissing his appeal of 

the decision by an Immigration Judge (“IJ”) finding him 

ineligible for discretionary relief from removal under Section 

203 of the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”).1 The IJ found Tobar-Barrera ineligible because he had 

been convicted of a disqualifying aggravated felony and ordered

him removed. For the reasons that follow, we grant in part and

deny in part the petition for review. We vacate the Board’s 

order and remand for further proceedings consistent with this 

opinion.

I.

The record reveals that the then-operative Immigration and 

Naturalization Service (“INS”) initiated removal proceedings on 

April 27, 1990. But those proceedings were administratively 

closed on September 6, 1991 to allow Tobar-Barrera to join a 

class of Guatemalans who had been offered special process for 

 1 Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), 

amended by Pub. L. No. 105-139, 111 Stat. 2644, 2644-45 (1997), 

(codified as amended in scattered sections of 8 U.S.C.).
3

seeking asylum in the United States.2 For the fourteen years that 

followed, there was no appreciable change in Tobar-Barrera’s 

immigration status. Tobar-Barrera filed his asylum application 

in May 2005. His application remained pending for two years,

awaiting review by the U.S. Citizenship and Immigration Service 

(“USCIS”), the agency that now reviews such applications. The 

application was denied.

According to USCIS, Tobar-Barrera was not entitled to 

relief because he had a disqualifying aggravated felony 

conviction, manslaughter. USCIS applied the definition of 

aggravated felony found in the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 

 2 While Tobar-Barrera’s removal proceedings were pending, 

the landmark settlement in American Baptist Churches v. 

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC Settlement”) 

was reached. The ABC Settlement involved a class action 

settlement among various government agencies (including the INS) 

and a plaintiff class of Salvadorans and Guatemalans who had 

fled their countries. The suit alleged that the United States 

government had politicized its asylum policy by discriminatorily 

denying refugee status to persons fleeing repressive regimes 

supported by the United States.

The ABC Settlement, entered in January 1991, stipulated 

that the INS would give de novo, unappealable hearings to most 

Salvadoran and Guatemalan asylum applicants who were present in 

the United States as of September 19, 1990, for Salvadorans, or 

October 1, 1990, for Guatemalans. Id. at 799-800. This right 

extended to all those who had previously been denied asylum, as 

well as those who had not yet filed for asylum or whose cases 

were still pending. Id. at 800. The settlement required the INS 

to stay pending deportation proceedings against class members. 

Id. at 805.
4

Stat. 3009-546 (1996) (“IIRIRA”). IIRIRA broadened the kinds of 

offenses that qualified as “crime of violence” aggravated 

felonies by decreasing the requisite imprisonment term from five 

years to one year. See IIRIRA § 321(a)(3). Under the pre-IIRIRA 

definition, Tobar-Barrera’s manslaughter conviction is not a 

disqualifying aggravated felony.

Tobar-Barrera’s immigration proceedings languished for 

another two years until the Department of Homeland Security 

(“DHS”) moved to re-calendar his removal proceedings in 

September 2009 because USCIS had found Tobar-Barrera ineligible 

for relief. In the interim, Tobar-Barrera attacked USCIS’s 

adverse ruling by filing an action for declaratory and 

injunctive relief in the United States District Court for the 

District of Maryland. Tobar-Barrera v. Napolitano, No. 09-3064, 

2010 WL 972557 (D. Md. Mar. 12, 2010). The district court

ordered the government to provide Tobar-Barrera with a de novo

asylum adjudication because USCIS erroneously found him

ineligible for relief. Id. at *8. There was no appeal from that 

ruling.

Tobar-Barrera filed a new application for relief in July 

2010. He argued that the record of conviction did not 

conclusively show that he had committed an aggravated felony and 

asked the IJ to consider new evidence – his own live testimony –

as further proof that he was not convicted of an aggravated 
5

felony. The IJ ruled that such testimony was inadmissible 

extrinsic evidence, and therefore could not be considered. She 

further ruled that Tobar-Barrera’s conviction was an aggravated 

felony under IIRIRA, making him ineligible for relief. For these 

reasons, she ordered him removed to Guatemala.

Tobar-Barrera appealed to the Board, asserting that the IJ 

erroneously applied the IIRIRA-amended definition of aggravated 

felony; that she also erred in failing to consider his live 

testimony; and that his due process rights were violated by the 

near twenty-year delay in the Attorney General’s prosecution of 

his removal proceedings. The Board affirmed the IJ’s order and 

dismissed the appeal.

Tobar-Barrera filed a timely petition for review in this 

Court. He contends that the Board erred in concluding that 

IIRIRA’s definition of “aggravated felony” applied to him.3

 3 Tobar Barrera’s second contention, that the Board erred in 

affirming the IJ’s decision to exclude testimonial evidence 

offered to satisfy his burden of proving that his manslaughter 

conviction was not an “aggravated felony,” is no longer at 

issue. We recently held, in Mondragon v. Holder, 706 F.3d 535 

(4th Cir. 2013), that when a statute of conviction is divisible, 

an alien is limited to presenting Shepard-approved sources to 

resolve any “ambiguity of his conviction.” Id. at 547 (citing 

Shepard v. United States, 544 U.S. 13 (2005)). In the absence of 

such documents, the non-citizen is prohibited from relying on 

“extrinsic evidence about his conduct” to establish that his 

conviction did not qualify as an aggravated felony. Mondragon, 

706 F.3d at 548. As Tobar-Barrera concedes, in light of 

Mondragon, the exclusion of his testimony is not a ground for 

relief.
6

We have carefully reviewed the record and fully considered 

the oral arguments of counsel.

II.

Because the Board adopted the findings and reasoning of the 

IJ, we review her decision as supplemented by the Board. Niang

v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). The Board’s 

determination that Tobar-Barrera’s conviction is an aggravated 

felony is a legal issue we review de novo. See Mbea v. Gonzales, 

482 F.3d 276, 279 (4th Cir. 2004). For reasons that follow, we 

grant, in part, the petition for review, finding as we do that 

the Board erroneously applied the IIRIRA-amended definition to 

the particular facts and circumstances of Tobar-Barrera’s case.

A.

There is no question that the definition of “aggravated 

felony” changed while Tobar-Barrera’s case was pending before 

the agency. In 1996, Congress, through IIRIRA, amended the 

definition of “aggravated felony” set forth in the Immigration 

and Nationality Act (“INA”), 8 U.S.C § 1101 (a)(43)(F) (2013). 

IIRIRA modified the INA’s definition of aggravated felony in a 

way that would make it more difficult for an alien to obtain 

relief in future removal proceedings.4 In enacting the IIRIRA

 4 Members of the ABC Settlement class were particularly 

affected because IIRIRA replaced the process previously 

available to class members with a more restrictive scheme. Solis 

(Continued)
7

amendments, Congress provided that “[t]he amendments made by 

this section shall apply to actions taken on or after the date 

of the enactment of this Act [September 30, 1996], regardless of 

when the conviction occurred.” IIRIRA § 321(c) (emphasis added).

Thus, the interpretation of IIRIRA section 321(c) is the 

source of the present dispute. See Garrido-Morato v. Gonzales, 

485 F.3d 319, 323 (5th Cir. 2007) (“‘Actions taken,’ . . . is 

not defined anywhere in IIRIRA and it is thus unclear what 

actions are contemplated by the statute, and who must take 

them.”). The Board, in affirming the IJ’s ruling, found that the 

IJ properly applied the IIRIRA-amended definition of aggravated 

felony to conclude that Tobar-Barrera’s conviction rendered him 

ineligible for NACARA relief. The Attorney General agrees, of 

course, relying primarily on Third and Fifth Circuit rulings 

that the term “actions taken” under section 321(c) refers to the 

Attorney General’s efforts to give effect to that particular 

section of IIRIRA (i.e., determining the meaning of “aggravated 

felony” to assess whether an ex-felon is eligible for 

discretionary relief). Garrido-Morato, 485 F.3d at 324; 

Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d Cir. 2007). In 

 

v. Holder, 490 F. App'x 744, 746 (6th Cir. 2012) (unpublished). 

Congress repealed these restrictions through NACARA and returned 

to class members the less restrictive, pre-IIRIRA conditions for 

relief. Id.
8

effect, these circuits found that Congress intended that section 

321(c) apply retroactively to all adjudications occurring on and 

after the date of enactment. Garrido-Morato, 485 F.3d at 324; 

Biskupski, 503 F.3d at 281-283. See also Valderrama-Fonseca v. 

I.N.S., 116 F.3d 853, 856-57 (9th Cir. 1997); Xiong v. I.N.S., 

173 F.3d 601, 607 (7th Cir. 1999); Choeum v. I.N.S., 129 F.3d 

29, 36-37 (1st Cir. 1997).

Tobar-Barrera, however, argues for a more narrow 

interpretation of the term and contends that “actions taken” 

refers to the point at which the Attorney General began its 

initial removal proceedings which, in this case, was in April 

1990. For support, Tobar-Barrera cites to the Sixth Circuit’s 

decision in Saqr v. Holder, holding that “the term ‘action 

taken’ . . . derive[s] from the point at which the removal 

action begins for purposes of determining whether the pre- or 

post-IIRIRA definition of aggravated felony applies.” 580 F.3d 

414, 422 (6th Cir. 2009). Tobar-Barrera has the better argument.

We reject the Attorney General’s contention that we should 

take the approach of the Fifth and Third Circuits in this case. 

This is because we decline to interpret the statute to say 

something that Congress chose not to say. There is no question 

that Congress intended the amended definition of “aggravated 

felony” to have some retroactive effect, in the sense that the 

new definition of “aggravated felony” would apply no matter when 
9

such convictions become final. But Congress did not say, as it 

well knows how to say when it chooses, that the amended 

definition would apply in all proceedings “‘pending on or after 

the date of enactment of the Act.’” Cf., e.g., Mueller v. 

Angelone, 181 F.3d 557, 566 n.4 (4th Cir. 1999)(discussing §

107(c) of the Antiterrorism and Effective Death Penalty Act of 

1996, Pub. L. No. 104–132, § 105, 110 Stat. 1214, 1220); Sanders 

v. Allison Engine Co., Inc., 703 F.3d 930, 934 (6th Cir.

2012)(discussing § 4(f)(1) of the Fraud Enforcement and Recovery 

Act of 2009, Pub. L. No. 111–21, 123 Stat. 1617, 1625). Rather, 

Congress limited the retroactive application of the amended

definition of “aggravated felony” by saying, instead, that the 

new definition would apply to “actions taken” on and after the 

date of enactment. The question posed, then, is what does the 

limitation enacted by Congress mean?

If we give conclusive effect to post-enactment decisions of 

an IJ or of the Board as “actions taken” to long-pending removal 

proceedings, as in this case, then we would be reading out of 

the statute the very limitation on retroactivity Congress 

intended. We simply do not believe that is a plausible 

interpretation of Congress’s manifest intention to limit the 

application of the expanded definition of “aggravated felony” so 

that the new definition applies to fewer than all proceedings 

“pending on . . . the date of enactment,” Mueller, 181 F.3d at 
10

566 n.4, a provision that Congress could have mandated but chose 

not to mandate. Surely Congress was aware that its failure to do 

so would be of consequence. Cf. I.N.S. v. Cardoza-Fonseca, 480 

U.S. 421, 449 (1987) (affirming, before IIRIRA’s 1996 effective 

date, “the longstanding principle of construing any lingering 

ambiguities in deportation statutes in favor of the alien”).

We find the Sixth Circuit’s interpretation to be the 

better-reasoned approach. It accounts for the statutory and 

regulatory scheme that governs removal proceedings. Saqr, 580 

F.3d at 421-22. And, it makes section 321(c) analysis consistent 

with the approach that other circuits have used to determine

eligibility for other discretionary relief provided by 

immigration officers. Id. at 422; see also Tran v. Gonzales, 447 

F.3d 937, 941 (6th Cir. 2006) (“We need not go through a lengthy 

statutory analysis to conclude that § 321(c) is not retroactive 

since the language of the section speaks for itself. Section 

321(c) explicitly limits the expanded definition of ‘aggravated 

felony’ to prospective deportation proceedings.”). 

Further, this interpretation aligns with the basic notions 

of fairness that are implicated when the rules concerning relief 

are changed in the middle of an alien’s ongoing removal

proceedings. We have previously explained the importance of this 

principle to preserving the intended function of NACARA itself, 

and its attendant provisions for relief. Appiah v. U.S. I.N.S., 
11

202 F.3d 704, 710 (4th Cir. 2000) (“NACARA was intended to 

correct a provision in the IIRIRA that would have had the effect 

of ‘changing the rules in the middle of the game for thousands 

of Central Americans and others who came to the United States 

because their lives and families had been torn apart by war and 

oppression.’”).5 Those concerns are particularly pointed in this 

case because it is unlikely that Tobar-Barrera knew his legal 

rights had changed while his case sat dormant for more than

twenty years. 

We are persuaded that the post-IIRIRA definition of 

“aggravated felony” was improperly invoked in the unique 

circumstances of this case. Tobar-Barrera’s deportation 

proceedings commenced in 1990, upon proper service of an order 

to show cause that was also filed with the Immigration Court.

See Toora v. Holder, 603 F.3d 282, 286 n.3 (5th Cir. 2010) 

(“Pursuant to 8 U.S.C. § 1229(a)(1), immigration proceedings 

initiate on the date the alien receives his [Notice to 

Appear].”) (citations omitted). Since that time, the record 

indicates that Tobar-Barrera has been subject to a single, 

 5 See also Saqr, 580 F.3d at 422 (quoting Alanis-Bustamante 

v. Reno, 201 F.3d 1303, 1310 (11th Cir. 2000) (“Considerations 

of fairness convince us that for purposes of deciding which law 

applies, the removal proceedings in this case should be viewed 

as commencing at least on that date . . . when the show cause 

order had been served and the warrant of detainer lodged.”)).
12

ongoing, deportation proceeding. Tobar-Barrera’s case number has 

remained the same; so has the underlying controversy regarding 

his removability and the dispute regarding his eligibility for 

special relief. Although the Immigration Court administratively 

closed this proceeding in 1991, the closure carried no legal 

effect. See Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988) 

(“The administrative closure of a case does not result in a 

final order. It is merely an administrative convenience that 

allows the removal of cases from the calendar in appropriate 

situations.”)). Thus, no triggering “action” was “taken” under 

these circumstances after the statutory amendment. Instead, the 

Attorney General’s motion to recalendar merely terminated a 

hiatus in proceedings already underway. Because the relevant 

“action taken” against Tobar-Barrera occurred in 1990, the preIIRIRA definition must apply.

B.

Tobar-Barrera also contends that review “of his NACARA 

application in the Immigration Court should have been conducted 

under the same eligibility rules that were employed by USCIS.” 

Pet. Br. at 20. To that end, Tobar-Barrera claims that the 

“divergent NACARA eligibility rules in USCIS and the Immigration 

Court” violate due process. Id. at 20-21.

Under 8 U.S.C. § 1252(d)(1), this Court may review a final 

order of removal only if “the alien has exhausted all 
13

administrative remedies available to the alien as of right.” Any 

particular claim that is not properly exhausted is barred from 

review by this Court. See Massis v. Mukasey, 549 F.3d 631, 638 

(4th Cir. 2008). This prohibition against reviewing unexhausted 

claims is jurisdictional. Id.

The record clearly establishes that Tobar-Barrera did not 

present this particular argument to the Board.6 Although we have 

recognized an exception to the exhaustion requirement for 

certain constitutional claims, see Farrokhi v. U.S. I.N.S., 900 

F.2d 697, 700-01 (4th Cir. 1990); Gallanosa v. United States, 

785 F.2d 116, 120-21 (4th Cir. 1986), Tobar-Barrera’s due 

process challenge to the allegedly disparate standards does not 

fall within the narrow confines of this exception. Therefore, 

the exception to the general exhaustion rule is inapplicable in 

this instance. See Kurfees v. I.N.S., 275 F.3d 332, 337 (4th 

Cir. 2001). Because the exhaustion requirement is not excused 

and the issue has not been administratively exhausted, we lack 

jurisdiction to consider this particular argument. 

 6 Tobar-Barrera, however, did raise a different due process 

claim below. That claim related to the more than twenty-year 

delay in prosecuting his removal. J.A. 33-35. Nonetheless, 

Tobar-Barrera has declined to raise that issue before this Court 

on appeal. See generally Pet. Br. at i, 18-21.
14

III.

For the foregoing reasons, we grant in part and deny in 

part the petition for review. Specifically, we vacate the 

Board’s order and instruct the Board to return this case to the 

IJ for de novo NACARA proceedings that apply the pre-IIRIRA

definition of aggravated felony. We deny as moot the pending 

motion to remand this case to the Board.7

PETITION GRANTED IN PART

AND DENIED IN PART

 7 While the petition for review was pending, the Attorney 

General filed a motion to remand this case to the Board for 

reconsideration in light of Salem v. Holder, 647 F.3d 111 (4th 

Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012), and to correct 

a defect in the Certified Administrative Record. The Court 

deferred action on the motion, which, in view of our decision on 

the merits, is denied as moot.
15

BARBARA MILANO KEENAN, Circuit Judge, dissenting:

I disagree with the majority’s interpretation of IIRIRA 

§ 321(c). Therefore, I respectfully dissent from Section II(A). 

The provisions in IIRIRA § 321(b) make clear that the 

revised definition of the term “aggravated felony” applies 

“regardless of whether the conviction was entered before, on, or 

after” IIRIRA’s enactment. See Mondragón v. Holder, 706 F.3d 

535, 542-43 (4th Cir. 2013). In IIRIRA § 321(c), the statute 

provides:

EFFECTIVE DATE. – The amendments made by this section 

shall apply to actions taken on or after the date of 

the enactment of this Act [September 30, 1996], 

regardless of when the conviction occurred. 

(emphasis added). 

The majority acknowledges that the term “actions taken” is 

not defined and is ambiguous. Yet, the majority “eschew[s] 

critical analysis of the meaning of the phrase ‘actions taken,’ 

instead substituting in its place the phrase ‘proceedings 

initiated.’” Biskupski v. Att’y Gen., 503 F.3d 274, 283 (3d 

Cir. 2007) (discussing the analysis in Tran v. Gonzales, 447 

F.3d 937 (6th Cir. 2006)). 

In my view, the majority of circuit courts to consider the 

meaning of “actions taken” have properly concluded that the term 

refers to actions and decisions by the Attorney General acting 

through an IJ or BIA. See generally, Garrido-Morato v. 
16

Gonzales, 485 F.3d 319, 324 (5th Cir. 2007); Biskupski, 503 F.3d 

at 283; Xiong v. I.N.S., 173 F.3d 601, 607 (7th Cir. 1999); 

Choeum v. I.N.S., 129 F.3d 29, 36-37 (1st Cir. 1997); 

Valderrama-Fonseca v. I.N.S., 116 F.3d 853, 856-57 (9th Cir. 

1997). 

I am persuaded by the analysis employed by the Fifth 

Circuit in Garrido-Morato. See 485 F.3d at 324. There, the 

court observed that because IIRIRA § 321(c) is “an effective 

date provision for § 321,” the term “‘actions taken’ must refer” 

to actions “taken under the statute, such as determining the 

meaning of ‘aggravated felony’ and thus the availability of 

discretionary hardship relief to such felons.” Id. 

In the present case, the IJ and BIA applied the INA’s 

definition for “aggravated felony” in the petitioner’s case in 

2010 and 2011, after IIRIRA’s effective date. Therefore, I 

would affirm the decision that the petitioner is ineligible for 

relief under NACARA because he was convicted of a disqualifying 

aggravated felony and would deny the petition for review in this 

case.